WFD: A prominent employment lawyer has claimed the proportion of dismissals likely to face legal challenge has risen dramatically since the implementation of the Fair Work Act. He has also accused dismissed workers of using reinstatement claims to boost ‘go away’ money past the maximum compensation amount allowed. People & Culture Strategies founder Joydeep Hor said in his experience with about 100 terminations per year, 90% would face some form of legal challenge. “Nine out of the ten people you sack will come back to you in some shape or form,” he said. That contrasted with Hor’s experience in 1997 when the firm he worked at reported seven out of ten terminations, “if not higher”, going through without legal challenge. Hor refrained from placing the blame on either the Fair Work Act or employee awareness. “Ultimately, it matters not,” he told attendees at the HR Summit in Sydney on March 28. “The reality is if you are embarking on a termination of employment, you need to get your ducks in a row.”

Reinstatement threat to boost payout

Hor said in many cases workers were now using a claim for reinstatement – “the most embarrassing situation for an employer” – as a point of leverage in discussions for ‘go away money’. “The employee has no desire to be reinstated in the organisation but if they continue to press for reinstatement they know that is the last thing their employer wants and the employer will keep ratcheting up the offer,” Hor said. “It’s a very common tactic to otherwise circumvent what is the maximum compensation [six months] that can be awarded.”

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